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Freedom of Information Acts
Citation: Freedom of Information Act, 5 U.S.C. §552. Overview Initially enacted in 1966, after 11 years of investigation, legislative development, and deliberation in the House and half as many years of such consideration in the Senate, and subsequently amended, the Freedom of Information Act (FOIA) displaced the ineffective public information section of the Administrative Procedure Act. Often referred to as the embodiment of “the people’s right to know” about the activities and operations of government, the Act statutorily established a premise of presumptive public access to information held by the federal departments and agencies.At the time of its enactment, the FOIA was regarded as a somewhat revolutionary development. Only two other nations — Sweden and Finland — had comparable law, and in neither case was it as sweeping as the new American model. The Act was designed to enable any person — individual or corporate, regardless of nationality — to request, without explanation or justification, presumptive access to existing, identifiable, unpublished, executive branch agency records on any topic. Not supported as legislation or enthusiastically received as law by the executive branch, the FOIA was subsequently refined with direct amendments in 1974, 1976, 1986, and 1996.The FOIA was amended in 1996 to provide for public access to information in an electronic form or format. FOIA provides the public with access to government information either through “affirmative agency disclosure” — publishing information in the Federal Register or on the Internet or making it available in reading rooms — or in response to public requests for disclosure. Public requests for disclosure of records are the best known type of FOIA disclosure. Any member of the public may request access to information held by federal agencies without showing a need or reason for seeking the information. The statute has become a somewhat popular tool of inquiry and information gathering for various quarters of American society — the press, business, scholars, attorneys, consumers, and environmentalists, among others — as well as some foreign interests. The response to a request may involve a few sheets of paper, several linear feet of records, or perhaps information in an electronic format. FOIA Procedures Agencies are required to meet certain time frames for making key determinations: whether to comply with requests (20 business days from receipt of the request);13 responses to appeals of adverse determinations (20 business days from filing of the appeal); and whether to provide expedited processing of requests (10 calendar days from receipt of the request). Congress did not establish a statutory deadline for making releasable records available, but instead required agencies to make them available promptly. Although the specific details of processes for handling FOIA requests vary among agencies, the major steps in handling a request are similar across the government. Agencies receive requests, usually in writing (although they may accept requests by telephone or electronically), which can come from any organization or member of the public. Once received, the request goes through several phases, which include initial processing, searching for and retrieving responsive records, preparing responsive records for release, approving the release of the records, and releasing the records to the requester. Figure 1 is an overview of the process, from the receipt of a request to the release of records. Exemptions Allowance is made in the law for the exemption of (1) information properly classified for national defense or foreign policy purposes as secret under criteria established by an executive order; (2) information relating solely to agency internal personnel rules and practices; (3) data specifically excepted from disclosure by a statute which either requires that matters be withheld in a non-discretionary manner or which establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter- or intra-agency memoranda or letters that would not be available by law except to an agency in litigation; (6) personnel, medical, or similar files the disclosure of which would constitute an unwarranted invasion of personal privacy; (7) certain kinds of investigatory records compiled for law enforcement purposes; (8) certain information relating to the regulation of financial institutions; and (9) geological and geophysical information and data, including maps, concerning wells. Some of these exemptions, such as the one concerning trade secrets and commercial or financial information, have undergone considerable judicial interpretation.For sources concerning judicial interpretation of the FOIA, see Litigation Under the Federal Open Government Laws: 2004 (Harry A. Hammitt, David L. Sobel & Tiffany A. Stedman, eds., EPIC Publications and The James Madison Project, 2004); James T. O’Reilly, Federal Information Disclosure (3d ed. 2000). Agencies within the federal intelligence community are prohibited from making any record available to a foreign government or a representative of same pursuant to a FOIA request. Dispute Resolution A person denied access to requested information, in whole or in part, may make an administrative appeal to the head of the agency for reconsideration. After this step, an appeal for further consideration of access to denied information may be made in federal district court.See U.S. Congress, House Committee on Government Reform, A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, H.R. Rep. 109-226, 109th Cong., 1st Sess. (2005). Fees Agencies responding to FOIA requests are permitted by the statute to charge fees for certain activities — records search, duplication, and review — depending upon the type of requester, such as a commercial user; an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; a news media representative; or the general public. However, requested records may be furnished by an agency without any charge or at a reduced cost, according to the law, “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”5 U.S.C. §552(a)(4)(A)(iii). References Category:Legislation Category:Legislation-U.S.-Federal Category:Legislation-U.S.-Privacy Category:Privacy